1. 4.2 Legal Literacy, Land Tenure and REDD+ Background and Opportunities Matt Sommerville USAID Tenure and Global Climate Change Project 5 February 2015

2. Overview Legal framework issues Land tenure and property rights Example of a process from Zambia

3. Legal Questions When did REDD+ become complicated? Leakage/jurisdictional issues Need a national supporting legal framework (governance) What legal framework/support do we need? REDD+ is an investment, just like establishing a new industry in a country Need an institution with authority to regulate and control sector

4. Questions What are the major legal questions challenges that you are facing? Project level and national level? What are the major land tenure and property rights challenges are facing? Project level and a national level?

5. 5 REQUIREMENTS FOR REDD+ IMPLEMENTATION Source: Climate Focus, Standards for Results-Based REDD+ Finance

6. Legal Questions What laws/regulations/processes are most relevant? Property Law Investment and Tax Law Environmental Law

7. Legal Questions What is an emission reduction credit? Commodity or service How is it created? VCS/CDM, smallholder farmer, government, investor Who is allowed to create it? Is it regulated? Does a carbon right create an interest in the land or resource?

8. What Are Carbon Rights? Rights to the resources that is generating credits Sequestered carbon and sequestered potential (management rights) Rights to benefits that arise from transferring property rights through trading schemes Why are carbon rights of interest?

9. Legal Questions

10. Land Tenure Why and How is it Relevant? Rights to land is more than title (bundle of rights) –Right of access, right of withdrawal, right of management, right of exclusion, right of alienation, authority to sanction Resources rights also have implications for REDD+ –Procedural and Substantive Rights –Define legitimate stakeholders –Establishes rights to benefit and right to participation –Creates assurances for investors on responsible groups

11. Why is this important REDD+ is a contract about establishing rights and responsibilities, and being rewarded or punished. Existing rights and responsibilities New rights and responsibilities Investment in tenure security is a win-win

12. Tenure in Current Standards: UNFCCC Cancun Agreements: “Requests developing country Parties…to address…land tenure issues, gender considerations…ensuring the full and effective participation of relevant stakeholders…” Clean Development Mechanism: “A description of legal title to the land, rights of access to the sequestered carbon, current land tenure and land use.” Carbon Fund Methodological Framework: Information on land tenure and resource rights can help inform sound ER Program design, as it may help to identify rights-holders…, can guide the targeted design of the ER Program Measures, can contribute to efforts to draft benefit sharing plans, and can demonstrate the ER Program Entity’s ability to transfer Title to ERs. Assessment of land and resource tenure in the Accounting Area. Making process on land tenure as a non-carbon benefit.

13. Tenure in Current Standards: Verified Carbon Standard: “Project participants shall define the project boundary at the beginning of a proposed project activity and shall provide the geographical coordinates of lands to be included…[L]and administration and tenure records (are required).” Climate, Community, and Biodiversity (CCB): “Description of current land use and customary and legal property rights including community property … identifying any ongoing or unresolved conflicts…and describing any disputes over land tenure that were resolved during the last ten years.” Plan Vivo: “Must be secure (land tenure or use rights) so that there can be clear ownership, traceability, and accountability for carbon reduction or sequestration benefits.”

14. Current REDD+ Tenure Activities in Africa Ethiopia - World Vision – Humbo Assisted Natural Regeneration Congo – North Pikounda – Concession permit with further MEFDD agreement that CIB’s right to title and ownership DRC – Isangi – Leased land Mai Ndombe – Logging concession local rights through Cahier de Charge Ghana – Reforestation of Degraded Forest Reserves, Ashanti Region (ER) Kenya – Wildlife Works – Community title and carbon rights agreements Kenya Agricultural Carbon Project – VCS Validators questionable judgment TIST – Questionable judgment when law is silent Malawi – Kulera – Protected Areas – Ownership in the State

15. Current REDD+ Tenure Activities in Africa Mali – Jatropha on Agricultural Areas – Malian Law vests carbon credits in the project proponent, though activities on customary land Senegal – Mangrove Restoration – Local community, letter from govt. South Africa Tree Planting in Townships: Only secure tenure houses. All rights to the land are devolved to owners – assumes that rights to ERs – No reference to easement/encumbrances Kuzuko Lodge Game Reserve: Private Lands. Rights to ERs assumed Uganda Bukaleba Forest Project: “no legal disputes exist as ‘none of the indigenous people had any legal or customary right before the lease agreement was established, and occupants found on the land all knew that they were there illegal’.” Kibale: Protected Area Plan Vivo: Helping communities acquire title (Community reforestation)

16. Current REDD+ Tenure Activities in Africa Zambia – BCP – registration of a conservation easement- “Illegal squatting resulted from confusion as to the exact location of the Northern boundary of the property. Due to the sensitive nature of land tenure in Zambia it was decided not to evict these people, but rather exclude this encroached area from the accounting area…best option is to exclude the encroached area from carbon accounting as including it will most likely make it necessary to relocate the occupants which could lead to unnecessary conflict.” Three Rocks – “Recipient households will sign an agreement acknowledging that 3RL is the owner of the rights to the emissions reductions generated by the stove and agreeing for the stove to be included in the monitoring” Zimbabwe- Kariba REDD+ Project RDCs have rights over land

17. Responses Clarify national rights and ownership in a flexible approach Map rights as the relate to intervention options Document local rights vis-à-vis, proponent/title owner rights, and use these as part of negotiation process Resources: http://usaidlandtenure.net/sites/default/files/USAID_Land_Tenure_LTPR_O verlay.pdf http://usaidlandtenure.net/sites/default/files/USAID_Land_Tenure_LTPR_O verlay.pdf http://usaidlandtenure.net/sites/default/files/USAID_Land_Tenure_Trees_a nd_Forests_Overlay.pdf http://usaidlandtenure.net/sites/default/files/USAID_Land_Tenure_Trees_a nd_Forests_Overlay.pdf

18. Resources

19. Options to Prioritize Tenure in REDD+ As a precondition for implementation? As a benefit emerging from REDD+ engagement? As an incremental process with incremental funding?

20. Zambian Land Tenure Regime: State and Customary Land Official Figures: ~6% State; ~94% Customary in 1994 No documentation of rights on customary lands 1995 Lands Act: One-way conversion process Current Figures: Unknown, but probably 30-40% State Conversion discourse in the media “Chiefs selling lands” “Government taking land (power) away from Chiefs” Underlying challenges Flawed information base Limited transparency in land allocation on state or customary land No communication between the two administration systems Lack of clear tenure framework on customary land to protect rights of smallholders

21. National Policies and Legislation Related to Land Tenure PF Manifesto Draft Constitution National Land Policy Customary Land Administration Bill Revised Forestry Act Application of Environmental Management Act Application of Decentralization Policy Compensation and Resettlement Policy (?)

22. Challenge No Customary Land Documentation No Transparency in Allocation and Administration No Consistent Application of Resource Management Law No Engagement of Government on Customary Land

25. Discussion